These Terms will apply to any contract between us for the provision of the Services to You (“Contract”). Please read these Terms carefully and make sure that You understand them, before ordering any Services from our Website. Please note that before placing an order You will be asked to agree to these Terms. If You refuse to accept these Terms, You will not be able to order any Services from our Website.

We may amend these Terms from time to time as set out in clause 11. These Terms were most recently updated on 1st August 2018.

Definitions

In these Terms the following words and expressions shall have the meanings given:

Authorised Users - those employees, agents and independent contractors of You who are authorised by You to use the Services;

Business Day - any day other than a Saturday, Sunday or English bank or public holiday;

Data Protection Legislation - (i) unless and until the GDPR is no longer directly applicable in the UK, the General Data Protection Regulation ((EU) 2016/679) and any national implementing laws, regulations and secondary legislation, as amended or updated from time to time, in the UK and then (ii) any successor legislation to the GDPR or the Data Protection Act 1998;

Effective Date - the date from which You become entitled to use the Services, which is the date Your order is confirmed as accepted by us.

Initial Subscription Term - the initial period in respect of which You have paid Subscription Fees for the right to use the Services;

Intellectual Property Rights - patents, rights to inventions, copyrights and related rights, trademarks, business names and domain names, rights in get-up, goodwill and the right to sue for passing off, rights in designs, database rights, rights to use, and protect the confidentiality of, confidential information (including know-how), and all other intellectual property rights, in each case whether registered or unregistered and including all applications and rights to apply for and be granted, renewals or extensions of, and rights to claim priority from , such rights and all similar or equivalent rights or forms of protection which subsist or will subsist now or in the future in any part of the world;

Login - the password protected login that allows an Authorised User to access the Services;

Services - the subscription services provided by us to You under the Terms via the Web Address;

Subscription Fees: - the subscription fees payable by You to us for the User Subscriptions, as set out from time to time on the Website;

Subscription Term: - has the meaning given in clause 15.1;

Usual Business Hours - 9.00 am to 5.00 pm local UK time, each Business Day;

User Subscriptions - the user subscriptions purchased by You pursuant to clause 7 which entitle Authorised Users to access and use the Services in accordance with these Terms;

Web Address: - https://app.rotacloud.com or such other address as we may notify to You from time to time.

When we use the words “writing” or “written” in these terms, this includes emails.

“You” refers to the person, organisation or business who subscribes to and pays for the use of the Services, and (where the context requires it) extends to any Authorised User, and Your shall be construed accordingly.

Information About Us

RotaCloud is a trading name of Kettle and Keyboard Limited, a company registered in England and Wales under company number 08625682. Our registered office is 49 Meadowfields Drive, York, YO31 9HW. Our VAT number is 208 3070 39.

You may contact us by messaging our customer service team via live chat or by emailing us at info@rotacloud.com.

Information About the Services

We operate the Website and Web Address, and provide certain software applications and platforms on a subscription basis for the purpose of the communication of staff rotas within businesses or other such organisation.

The Services will be available for You to use only in Your operations.

Authority and Entire Agreement

You confirm that You have authority to bind any business on whose behalf You use the Website to purchase the Services.

You and we agree that neither of us shall have any claim for innocent, negligent misrepresentation or negligent misstatement based on any statement in this Contract.

Use of Online Services

You are responsible for the acts and/or omissions of any persons making use of Your Login(s) whether authorised to do so or not. You will promptly notify us on becoming aware of any Login and/or password being known and/or available to a third party and You will immediately take all necessary steps to change the password associated with any Login which has been compromised.

If You become aware that any unauthorised access to or use of any Service has occurred or may occur, You will promptly notify us.

If we become aware that any unauthorised access to or use of a Service has occurred, or may occur, we will promptly notify You and may take steps to suspend and/or terminate Your access to or use of the Services.

Without prejudice to our rights under clause 4.3 upon notification under clause 4.1 or 4.2 we will discuss with You what steps if any may be appropriate to reduce the risk of any further unauthorised access to or use of the Services, and each of us will take such steps as soon as is reasonably practicable, with each of us bearing their own costs.

Where at any time we become aware that You are not complying with these Terms, including but not limited to access to or use of the Services, or that there has been or may be unauthorised access to or use of any Service, we reserve the right to suspend and/or terminate Your access to any Service, and will notify You in the event that suspension or termination occurs. We have discretion to restore Your access where You have demonstrated to our reasonable satisfaction that such non-compliance has ceased and that You are taking all reasonable steps to prevent its recurrence.

The Terms of Website Use shall apply to Your use of the Services.

Authorised Users are authorised to use the Services only for the reasonable purposes of Your undertaking.

Modification of the Service

We reserve the right at any time and from time to time to modify or discontinue, temporarily or permanently, the Service (or any part thereof) with or without notice.

Use of the Application Program Interface

You may access the Services via an Application Program Interface (“API”).

Subject to clause 17.1, we shall not be liable for any direct or indirect losses resulting from Your use of the API, or arising from the use of any third-party products that access data via the API.

Abuse of or unreasonably frequent requests via the API may result in the temporary or permanent suspension of Your access to the API.

We may any time modify or discontinue, temporarily or permanently, access to the API (or any part thereof) without notice.

User Subscriptions

Subject to You purchasing the User Subscriptions, the restrictions set out in this clause 7 and the other provisions of these Terms, we hereby grant to You a non-exclusive, non-transferable right to permit the Authorised Users to use the Services during the Subscription Term solely for activities consequential to Your organisation.

You shall use all reasonable endeavours to prevent any unauthorised access to, or use of, the Services and, in the event of any such unauthorised access or use, promptly notify us.

The rights provided under this clause 7 are granted to You only, and shall not be considered granted to any subsidiary or holding company of You.

The Services

We shall, during the Subscription Term, provide the Services to You on and subject to the Terms.

We shall use commercially reasonable endeavours to make the Services available 24 hours a day, seven days a week, except for:

scheduled maintenance carried out outside Usual Business Hours; and

unscheduled maintenance performed inside Usual Business Hours

We will make reasonable endeavours to provide You with at least 6 Hours’ notice in advance of any scheduled maintenance.

We will, as part of the Services and at no additional cost to You, provide You with our standard client support services during Usual Business Hours.

Our Contract With You

Our acceptance of Your order will take place when we email You to accept it, at which point a contract will come into existence between You and us.

If we are unable to accept Your order, we will inform You of this and will not charge You for the Service. This might be, for example, due to unexpected limits on our resources which we could not reasonably plan for, or because we have identified an error in the price or description of the service.

Your Right To Make Changes

If You wish to make a change to the Service You have ordered please contact us. We will let You know if the change is possible. If it is possible we will let You know about any changes to the price, or anything else which would be necessary as a result of Your requested change and ask You to confirm whether You wish to go ahead with the change.

For any upgrade or downgrade in subscription, for example, in order to increase or decrease the number of Authorised Users available to You, will be charged the new rate on Your next billing cycle.

In the case of amendments relating to an annual subscription, such changes in billing will be applied pro-rata and charged at the time the change takes place.

Our Right To Make Changes

We may change the Services:

to reflect changes in relevant laws and regulatory requirements; or

to implement minor technical adjustments and improvements, for example to address a security threat. These changes will not affect Your use of the Service.

Our Right To Vary These Terms

We may amend these Terms from time to time. Please look at the top of this page to see when these Terms were last updated and which Terms were changed.

Every time You order from us, the Terms in force at the time of Your order will apply to the Contract between You and us.

We may revise these Terms as they apply to Your order from time to time to reflect changes in relevant laws and regulatory requirements.

Price and Payment of Services

The prices of the Services will be as quoted on the Website at the time You submit Your order. We take reasonable care to ensure that the prices of the Services are correct at the time when the relevant information was entered onto the system. However, please see clause 13.4 for what happens if we discover an error in the price of the Service(s) You ordered.

Prices for our Services may change from time to time, and we shall provide You with 10 business days written notice in advance of any change.

The price of a Service includes VAT (where applicable) at the applicable current rate chargeable in the UK for the time being. However, if the rate of VAT changes between the date of Your order and the date it is accepted, we will adjust the VAT You pay, unless You have already paid for the Services in full before the change in VAT takes place.

It is possible that despite our efforts, some of the Services on the Website may be incorrectly priced. If we discover an error in the price of a Service You have ordered we will contact You to inform You of this error and we will give You the option of continuing to purchase the Service at the correct price or cancelling Your order. We will not process Your order until we have Your instructions. If we are unable to contact You using the contact details You provided during the order process, we will treat the order as cancelled and notify You in writing. If we mistakenly accept and process Your order where a pricing error is obvious and unmistakeable and could reasonably have been recognised by You as a mispricing, we may cancel supply of the Service and refund You any sums You have paid.

How To Pay

You can pay for the Services:

using a debit card or a credit card. We accept the following cards: Visa, Mastercard, or American Express.

in advance by BACS when purchasing an annual subscription.

Payment for the Services and any applicable charges is in advance.

If You do not pay us for the Service when You are supposed to we may suspend access to the Service until You have paid us the outstanding amounts. We will contact You to tell You when we are suspending supply of the Services.

Without prejudice to clause 14.3, as well as suspending the Service, we may charge interest to You on the over due amount at the rate of 5% a year above the base lending rate of HSBC Plc from time to time. The interest shall accrue on a daily basis from the due date until the date of actual payment of the overdue amount, whether before or after judgment. You must pay us interest together with any overdue amount.

Subscription fees are non-refundable. Should You terminate this agreement in accordance with clause 18, no refund (whether pro-rata or otherwise) will be made for any unused subscription.

Data Protection

In terms of our use of the data You, the employers, provide to us when You subscribe to use our services, see our Privacy Policy, which is incorporated into these Terms of Supply. The rest of this clause 15 is about how we handle your employees’ data.

Both parties will comply with all applicable requirements of the Data Protection Legislation. This clause 15 is in addition to, and does not relieve, remove or replace, a party's obligations under the Data Protection Legislation.

The parties acknowledge that for the purposes of the Data Protection Legislation, You are the data controller and we are the data processor (where Data Controller and Data Processor have the meanings as defined in the Data Protection Legislation).

Without prejudice to the generality of clause 15.2, You will ensure that You have all necessary appropriate consents and notices in place to enable lawful transfer of the Personal Data to us for the duration and purposes of this agreement, and for the processing of that Personal Data as envisaged by this agreement.

Without prejudice to the generality of clause 15.2, we shall, in relation to any Personal Data processed in connection with the performance by us of our obligations under this agreement.

process that Personal Data only on Your written instructions, as set out in Schedule 1 to these Terms and Conditions, unless we are required by the laws of any member of the European Union or by the laws of the European Union applicable to us to process Personal Data (Applicable Laws). Where we are relying on laws of a member of the European Union or European Union law as the basis for processing Personal Data, we shall promptly notify You of this before performing the processing required by the Applicable Laws unless those Applicable Laws prohibit us from so notifying You;

ensure that we have in place appropriate technical and organisational measures, reviewed and approved by You, to protect against unauthorised or unlawful processing of Personal Data and against accidental loss or destruction of, or damage to, Personal Data, appropriate to the harm that might result from the unauthorised or unlawful processing or accidental loss, destruction or damage and the nature of the data to be protected, having regard to the state of technological development and the cost of implementing any measures (those measures may include, where appropriate, pseudonymising and encrypting Personal Data, ensuring confidentiality, integrity, availability and resilience of its systems and services, ensuring that availability of and access to Personal Data can be restored in a timely manner after an incident, and regularly assessing and evaluating the effectiveness of the technical and organisational measures adopted by it);

ensure that all personnel who have access to and/or process Personal Data are obliged to keep the Personal Data confidential; and

not transfer any Personal Data outside of the European Economic Area unless the following conditions are fulfilled:

You or we have provided appropriate safeguards in relation to the transfer;

the data subject has enforceable rights and effective legal remedies;

we comply with our obligations under the Data Protection Legislation by providing an adequate level of protection to any Personal Data that is transferred; and

we comply with reasonable instructions notified to us in advance by You with respect to the processing of the Personal Data;

assist You, at Your cost, in responding to any request from a Data Subject and in ensuring compliance with Your obligations under the Data Protection Legislation with respect to security, breach notifications, impact assessments and consultations with supervisory authorities or regulators;

notify You without undue delay, and in any event within 48 hours, on becoming aware of a Personal Data breach;

at Your written direction, delete or return Personal Data and copies thereof to You on termination of the agreement unless required by Applicable Law to store the Personal Data; and

maintain complete and accurate records and information to demonstrate our compliance with this clause 18, and allow for audits by You or Your designated auditor.

You hereby consent to us appointing a number of third-party processors of Personal Data under this agreement. For details of the third-party processors we use, see our Third-Party Processors List, in addition to the Third Party Processors on this page we also use carefully selected agents who have signed up to our Partner Program, as third-party processors of Personal Data under this agreement. We confirm that we have entered or (as the case may be) will enter with each third-party processor into a written agreement substantially on that third party's standard terms of business, or on the terms of our Partner Program Agreement. As between You and us, we shall remain fully liable for all acts or omissions of any third-party processor appointed by us pursuant to this clause 15.6.

Either party may, at any time on not less than 30 days’ notice, revise this clause 15 by replacing it with any applicable controller to processor standard clauses or similar terms forming part of an applicable certification scheme (which shall apply when replaced by attachment to this agreement).

Intellectual Property

All Intellectual Property Rights in or arising out of or in connection with the Services shall belong to us.

You acknowledge that, in respect of any third party Intellectual Property Rights, Your use of any such Intellectual Property Rights is conditional on us obtaining a written licence from the relevant licensor on such terms as will entitle us to licence such rights to You.

Our Responsibility For Loss Or Damage Suffered By You

Nothing in these Terms shall limit or exclude our liability for:

death or personal injury caused by our negligence, or the negligence of our employees, agents or subcontractors (as applicable);

fraud or misrepresentation;

breach of the terms implied by section 12 of the Sale of Goods Act 1979 or section 2 of the Supply of Goods and Services Act 1982; or

any matter in respect of which it would be unlawful for us to exclude or restrict liability.

All terms implied by sections 13 to 15 of the Sale of Goods Act 1979 and sections 3 to 5 of the Supply of Goods and Services Act 1982 are excluded.

Subject to clause 17.1:

we shall not be liable to You, whether in contract, tort (including negligence), for breach of statutory duty, or otherwise, arising under or in connection with the Contract for:

loss of profits;

loss of sales or business;

loss of agreements or contracts;

loss of anticipated savings;

loss of use or corruption of software, data or information;

loss of damage to goodwill; and

any indirect or consequential loss; and

our total liability to You for all other losses arising under or in connection with the Contract, whether in contract, tort (including negligence), breach of statutory duty, or otherwise, shall be limited to the total sum of the Subscription Fees paid by You for the Services under the Contract.

The clause 17 shall survive termination of the Contract.

Term And Termination

This Contract will commence on the Effective Date and shall continue for the Initial Subscription Term and, thereafter, shall be automatically renewed for success periods equivalent in duration to the Initial Subscription Term, each a “Renewal Period”, and together the “Subscription Term”, unless otherwise terminated as provided in this clause 19.

We may terminate this Contract at any time before the end of the Subscription Term without notice, for any reason. In which case, this agreement and Your access to the Service shall terminate on the expiry of the Subscription Term.

You may terminate this Contract any time by:

if paying by BACS, contacting us by telephone, or in writing; or

if paying by recurring card payment, by navigating to the “Billings” tab within “Settings” in Your account, and selecting the “Cancel Subscription” link.

If You cancel Your account, this agreement and Your access to the Service shall terminate on the expiry of the Subscription Term.

Without prejudice to any other rights or remedies to which either of us may be entitled, either of us may terminate the Contract without liability to the other if:

the other commits a material breach of any of the clauses of these Terms and (if such a breach is remediable) fails to remedy that breach within 30 days of being notified in writing of the breach;

an order is made or a resolution is passed for the winding-up of the other, or circumstances arise which entitle a court of competent jurisdiction to make a winding up order in relation to the other;

an order is made for the appointment of an administrator to manage the affairs, business and property of the other, or documents are filed with a court of competent jurisdiction for the appointment of an administrator of the other, or notice of intention to appoint an administrator is given by the other or its directors or by a qualifying floating charge holder (as defined in paragraph 14 of Schedule B1 to the Insolvency Act 1986);

a receiver is appointed of any of the other's assets or undertaking, or if circumstances arise which entitle a court of competent jurisdiction or a creditor to appoint a receiver or manager of the other, or if any other person takes possession of or sells the other party's assets;

the other makes any arrangement or composition with its creditors, or makes an application to a court of competent jurisdiction for the protection of its creditors in any way;

the other ceases, or threatens to cease, to trade;

there is a Change of Control of You within the meaning of section 1124 of the Corporation Tax Act 2010 (in which case only we shall be entitled to terminate); or

the other takes or suffers any similar or analogous action in any jurisdiction in consequence of debt.

On termination of this Contract, we may destroy or otherwise dispose of any of Your data in our possession unless we receive, no later than ten days after the expiry of the Subscription Term, a written request for the delivery to You the then most recent backup of data. We shall use reasonable endeavours to deliver the data to You within 30 business days of receipt of such a written request, provided that You have, at that time, paid all fees and charges outstanding at and resulting from termination (whether or not due at the date of termination). You shall agree to pay all expenses incurred by us in providing the data to You.

Communications Between Us

Any notice or other communication given by You to us, or by us to You, under or in connection with the Contract shall be in writing and shall be delivered personally, sent by pre-paid first class post or other next working day delivery service or e-mail.

A notice or other communication shall be deemed to have been received: if delivered personally, when left at our registered office; if sent by pre-paid first class post or other next working day delivery service, at 9.00 am on the second Business Day after posting or if sent by email, one Business Day after transmission.

In proving the service of any notice, it will be sufficient to prove, in the case of a letter, that such letter was properly addressed, stamped and placed in the post and, in the case of an e-mail, that such e-mail was sent to the specified e-mail address of the addressee.

The provisions of this clause 19 shall not apply to the service of any proceedings or other documents in any legal action.

Other Important Terms

Neither of us shall be in breach of the Contract nor liable for delay in performing, or failure to perform, any of its obligations under the Contract if such delay or failure results from events, circumstances or causes beyond our reasonable control.

We may at any time assign, transfer, mortgage, charge, subcontract or deal in any other with all or any of our rights under the Contract to another organisation, but this will not affect Your rights or our obligations under these Terms. We will always notify You in writing or by posting on this webpage if this happens.

You may not, without our prior written consent, assign, transfer, mortgage, charge, subcontract, declare a trust over or deal in any other manner with any or all of Your rights or obligations under the Contract.

Neither of us shall at any time and for a period of five years after the termination of the Contract, disclose to any person and confidential information concerning the business, affairs, customers, clients or suppliers of the other, except as permitted by clause 20.5.

Either of us may disclose the other’s confidential information:

to its employees, officers, representatives, subcontracts or advisers who need to know such information for the purposes of carrying out its obligations under the Contract, provided we each ensure that our employees, officers, representatives, subcontracts or advisers comply with clause 20.4; and

as may be required by law, a court of competent jurisdiction or any governmental or regulatory authority.

Neither of us shall use the other’s confidential information for any purpose other than to perform its obligations under the Contract.

This Contract is between You and us. No other person shall have any rights to enforce any of its terms, whether under the Contracts (Rights of Third Parties) Act 1999 or otherwise.

We reserve the right, in our sole discretion, to change, modify, add to, supplement or delete any portion of these Terms at any time, effective with or without prior notice; provided, however, that we will use reasonable efforts to provide you with notification of any material changes (as determined in our sole discretion) by email.

Each of the clauses of these Terms operates separately. If any court or relevant authority decides that any of them are unlawful or unenforceable, the remaining clauses will remain in full force and effect.

If we fail to insist that You perform any of Your obligations under these Terms, or if we do not enforce our rights against You, or if we delay in doing so, that will not mean that we have waived our rights against You and will not mean that You do not have to comply with those obligations. If we do waive a default by You, we will only do so in writing, and that will not mean that we will automatically waive any later default by You.

A Contract and any dispute or claim arising out of or in connection with it or its subject matter or formation (including non-contractual disputes or claims) shall be governed by and construed in accordance with the law of England and Wales.

We both irrevocably agree that the courts of England and Wales shall have exclusive jurisdiction to settle any dispute or claim arising out of or in connection with a Contract or its subject matter or formation (including non-contractual disputes or claims).

SMS Fair Usage Limits

The following Policy relates to your use of our SMS notifications service only.

As the owner of your RotaCloud account you are entitled to a set number of SMS notifications as per your billing cycle and payment plan.

If you reach the limit of your set number of SMS notifications before the end of your current billing cycle you will be notified, and you and anyone else using the Service via your account will be unable
to send or receive SMS notifications until your next billing cycle when your balance is renewed.

The SMS limits as per your payment plan and billing cycle are listed below, please note if you are on a custom pricing plan your limits will vary:

Processing by Us

Scope and nature of processing
We store information given to us by You and by Your staff, and use it to provide rota management services to You. We use Amazon Web Services as a cloud services provider, and other suppliers as listed in clause 15.6, to help improve our services. We also store information about You and use it to administer the Contract between us, i.e. Your subscription for our Services.

Purpose of processing
To provide services to You.

Duration of the processing
The duration of the Contract between us (Your subscription to use our services), and up to six months following its expiry.